Tuesday, July 4, 2017

The cost of freedom: Reforming America's money bail system

Gideon
v. Wainwright proclaimed the right of every criminal
defendant to the assistance of counsel, regardless of ability to pay. In
theory, this guarantees a more even playing field in our criminal justice
system. The poor may have been granted access to public defenders, but in a
country of extreme wealth and income inequality, they don’t get off that easy.

Enter the money bail system. Hundreds of thousands of
people currently sit in jail around the country simply because they cannot
afford to make bail while waiting for trial, many for misdemeanor offenses. Money
bail schedules predetermine bail amounts without inquiring into ability to pay
or any extenuating circumstances. Those who work with incarcerated individuals
know all too well what happens to these people, who at this point are “presumed
innocent.” On the inside, they face the oppressive conditions of American
jails. On the outside, they face the loss of housing, employment, custody of
children, and faith in a system that will fairly adjudicate their case. They
are more likely to plead guilty, more likely to be convicted at trial, and more
likely to receive longer sentences. The message is clear: poverty can make you
lose your freedom.

The tide is turning on this wealth-based system of pre-trial
detention. Last year, two civil rights groups, Texas Fair Defense Project and
Civil Rights Corps, and Houston-based litigation shop Susman Godfrey,
challenged Harris County, Texas in federal court on the constitutionality of
its money bail system. Harris County, Texas is the third-most populous county
in the nation and home to 50,000 misdemeanor arrestees every year. In April, Chief
Judge Lee H. Rosenthal of the Southern District of Texas issued a monumental 193-page
ruling enjoining the money bail system in Harris County on equal protection and
due process grounds, in O’Donnell v.
Harris County, No. H-16-1414 (S.D. Tex. Apr. 28, 2017). Harris County’s
emergency request for a stay of the order was rejected by the Fifth Circuit and
by Justice Clarence Thomas on the Supreme Court in June. Harris County has started
releasing misdemeanor arrestees and investing in reforming its bail system.

This decision will still have to be reviewed in full by
the Fifth Circuit and likely the Supreme Court as well, and there are practical
questions on implementation. Nonetheless, Judge Rosenthal’s order already has
nationwide impact and implications for public defenders. The dynamics of plea
negotiations, for example, are clearly different when the client is at home rather
than a holding cell.

Similar challenges have been brought closer to home. In
2016, Judge Crabtree of the District of Kansas issued an injunction against the
money bail system in the City of Dodge City, Kansas. The Court ordered Dodge
City to release all non-warrant arrestees on municipal ordinance violations,
because the use of a secured bail as a condition of release “implicates the
protections of the Equal Protection Clause when such condition is applied to
the indigent person.” Martinez v. City of
Dodge City, No. 15-CV-9344-DDC-TJJ (D. Kan. Apr. 26, 2016). These decisions
show that while the influence of wealth on the criminal justice system is deep
and pervasive, the poor and the wealthy alike may soon have an equal
opportunity to fight their charges outside the confines of a jail.